E.D. Tenn.: A money counting machine found during execution of a drug warrant was found in plain view and was apparently evidence of money laudering

Seizure of a cellphone incident to arrest for a drug offense was reasonable. In the warrant for the defendant’s property, a money counting machine was properly seized in plain view. United States v. Reynolds, 2009 U.S. Dist. LEXIS 71057 (E.D. Tenn. June 4, 2009):

The United States Supreme Court has held that law enforcement may search a vehicle incident to a lawful arrest when “it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Arizona v. Gant, 129 S. Ct. 1710, 173 L. Ed. 2d 485, 2009 U.S. LEXIS 3120, at *20 (2009). In this case, defendant Smith was arrested for alleged possession of a controlled substance, marijuana. Given the circumstances surrounding defendant’s arrest, it was reasonable for the officers to believe that a search of defendant Smith’s vehicle would produce evidence related to that crime, and therefore the officers were justified in conducting a warrantless search of defendant Smith’s vehicle as an incident to his arrest. It was during this search incident to arrest that the officers found the five cell phones at issue. Given the volume of drugs found, coupled with the fact that the drugs were shipped via Federal Express to a hotel for pickup, the Court finds that it was reasonable for the officers to believe that the cell phones might contain evidence of drug trafficking, and therefore the phones were properly seized during the warrantless search incident to arrest. See Ajan v. United States, No. 2:02-CR-71, 2009 U.S. Dist. LEXIS 43575, at *25-26 (E.D. Tenn. May 20, 2009) (citing United States v. Finley, 477 F.3d 250 (5th Cir. 2007)) (authorizing the seizure of a cell phone incident to a drug related arrest).

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As to the final category, there is no question that the warrant does not specifically authorize the seizure of money counting machines. However, the government argues that the money counting machines, described as being similar to the machines used by banks to count large sums of cash, were properly seized under the plain view doctrine as evidence of money laundering.

“The plain view doctrine allows a warrantless seizure of items if: (1) the officer is lawfully on the premises; (2) the discovery is inadvertent; and (3) the incriminating nature of the items is immediately apparent.” United States v. Blakeney, 942 F.2d 1001, 1028 (6th Cir. 1991). In this circumstance, all three factors were satisfied. The officers were lawfully on the premises executing the warrants at issue; there is no evidence that the officers expected to find money counting machines during the execution of the warrant; and neither is there any evidence that the officers obtained the warrants in question as a pretext for seizing the money counting machine. The linkage between the money counting machines and the charges of money laundering was immediately apparent to the officers executing the warrant. Accordingly, although the money counting machines fell outside the scope of the warrant, they were properly seized under the plain view doctrine.

Defendant’s consent to seizure of his computer excused the government’s delay in getting around to search the hard drive for child pornography, distinguishing United States v. Mitchell, 565 F.3d 1347 (11th Cir. 2009), posted here. United States v. Murinko, 2009 U.S. Dist. LEXIS 71196 (E.D. Wash. August 12, 2009).

Defense counsel’s choice of strategies for pursuing a suppression motion was not unreasonable. United States v. Ramos-Gonzales, 2009 U.S. Dist. LEXIS 70835 (E.D. La. August 5, 2009).*